Morrisey sets new hiring rules for counsel

July 31, 2013

CHARLESTON (AP) - Attorney General Patrick Morrisey said Tuesday he'll require competitive bidding and issue written justification of the need when his office hires outside lawyers, ensuring the contracts are cost-effective and in the public's best interest.

On Tuesday, he posted a six-page policy that went into effect July 16, laying out how lawyers will be chosen from pre-approved lists and ensuring that his office will retain direct control over the litigation and settlement decisions. That includes "veto power over any decisions made by outside counsel," it says.

The policy sets a series of caps on the fees that lawyers can collect from big settlements and jury awards, with an overall limit of $50 million in any one case, regardless of the award amount.

The fee schedule limits the attorneys to 25 percent of the first $10 million recovered and 25 percent of the additional amount between $10 million and $15 million. The percentage then drops to 15 percent, 10 percent and 5 percent based on the additional increments of the award.

"In no event shall the aggregate fee for any legal matter exceed $50 million for any matters," the policy says.

Morrisey said the document "strikes an appropriate balance between the need for transparency and accountability in outside counsel hires and the desire to provide the state and its agencies with top-notch legal services."

So far, he said, he's handled more than a dozen cases without contract lawyers and has seven requests for proposals ready for bidding.

Only six public comments were submitted on the guidelines, but Morrisey said they did trigger some revisions.

Those include provisions to identify potential conflicts of interest by outside lawyers and clarifications to ensure the protection of attorney-client privilege and confidential work products.

The new policy also revises the pre-bidding process to require both the re-evaluation of the pre-approved attorney list at least every two years.

"This policy sends a strong message that West Virginia will be transparent and accountable with respect to the use of outside counsel," Morrisey said.

Outside attorneys won't be selected solely on the basis of cost. Morrisey can also consider skills and expertise, "requisite staffing and support," and whether the lawyers or any members of their firms have ever been reprimanded or punished by the State Bar for unethical conduct.

Morrisey can also consider whether attorneys are peer-rated, their willingness to enter "alternative billing arrangements" and "any such other relevant factors" he may identify.